Justice in This World (Charles Mathewes)

There is a good case to be made that the American criminal justice system is itself criminal. Up until around 1980, all statistics we have suggest that the incarceration rate varied at around 100 inmates per 100,000 people. After about 1977, and especially after about 1982, the rate began to rise; in 2008 it was over 700 prisoners per 100,000, and while it seems to have begun a modest decline in the past few years, it remains over 700. In this context, “American exceptionalism” is not an overstatement; the United States is effectively the largest incarcerator in the world; the only states near us are Cuba and North Korea.

There is a good case to be made that the American criminal justice system is itself criminal. Up until around 1980, all statistics we have suggest that the incarceration rate varied at around 100 inmates per 100,000 people. After about 1977, and especially after about 1982, the rate began to rise; in 2008 it was over 700 prisoners per 100,000, and while it seems to have begun a modest decline in the past few years, it remains over 700. In this context, “American exceptionalism” is not an overstatement; the United States is effectively the largest incarcerator in the world; the only states near us are Cuba and North Korea. Furthermore, this imprisonment system is hugely racially discriminate: An African-American boy born today in the U.S. has a 1 in 3 chance of going to prison. More African-American men were in prison or on parole in 2013 than were enslaved in 1850. Finally, the criminal justice system is fundamentally punitive, not at all reformative. We incarcerate, but we don’t correct. US prisons are factories of criminality—the best predictor of whether a person will be arrested in the future is whether that person has been in prison before. An observer from another planet would be well within her rights to say that, while this system bears some relationship to criminality, it produces criminality at least as much as removes it.[1]

Considered in itself, the above is terrible enough. But the cruel irony is that this situation has arisen in the face of a huge decline in actual crime rates. From 1993 to 2012, the violent crime rate across the United States dropped by 48%. (And not, by the way, because the criminals have all been locked up—better policing and changes in demographics have contributed far more substantively to this change.) The last time violent crime was at the levels it is at today was 1963. Still, poll after poll shows that the U.S. population believes crime continues to rise; hardly anyone cares that the system itself is so massively horrific. This makes the moral outrage of American criminal justice also an acute political problem: for how did we come to be so misled about our situation, and about what we are doing collectively in response to it?

Answering this question is not easy. The causes of this condition are many. As the work of scholars such as Marie Gottschalk and Derek Jeffreys makes clear, the United States has long had a troubled history with criminal justice, but recent decades have concocted a new combination of superficial moralism and legalism with its own ironic complexities.[2] Since the 1960s and the Miranda era, we have seen what William Stuntz has called, in his book The Collapse of American Criminal Justice, the procedural “rights revolution” which has led to a procedural revolution in justice.[3] Today we have a bureaucratized system of justice in which not justice but bureaucratic rationality is the most highly prized reality. The system is designed not primarily to deliver justice, but to produce convicts like widgets; that is why 95% of all criminal cases never make it to court, but are pled out between prosecutors and defense attorneys.[4]

Second, in several different ways most people today are farther away from the criminal justice system, and criminality itself, than they once were. This is so because of political, and racial, facts about criminal justice in the US. On the one hand, the people who make and enforce the law are different from the people who get punished by it. The past few decades have seen remarkable changes in what is considered criminal behavior and what is not; the same era that saw the appearance of mandatory minimum punishment regulations and severe drug laws, saw the deregulation of Wall Street.[5] Furthermore, policing is itself maldistributed in several ways, not the least being that “justice” is enforced by police and juries, who themselves live far away from the site of policing (as the events of Ferguson, Missouri reminded us in the summer of 2014). In sum, we have designed this system in such a way that many of us, especially in the white upper-middle class, just don’t see the system at work because it mostly works on a minority and marginalized underclass of our social order.

We are also distanced from criminality in a deeper way, for the moral anthropology of modern liberalism seduces us into a too-optimistic and simplistic vision of the human being, which has as its inverse the stigmatization and alienation of human misbehavior. There is a long series of studies on this, from Norbert Elias through Michel Foucault to Karen Halttunen’s Murder Most Foul, that chart the ways that we have come to find unimaginable the idea that ordinary humans could do evil. The rise of a certain moralized language of “normality” in the modern world has created a “medicalization” model for human malfeasance, one that explains criminality by medically-determined pathology rather than as the expression of the human’s voluntary (if utterly inscrutable) will. By extension, the rest of us are innately good, not susceptible of such criminality; there must be some non-voluntary difference between “us” and “them”. (Seen in this light, “culturalist” explanations of “black [or, slightly more politely, “urban”] criminality” in the US are only slightly more subtle ways of reinforcing a narration of fundamental difference between groups of people.) Increasingly today, we fail to see any continuity between ourselves and criminals: “They” are monsters, we think, or they are sick; but either way, surely they are not in any significant continuity with (nice, decent) us.[6]

Finally, the politics of crime is quite pathological in the US today. The moralism with which this topic is commonly discussed in public discourse cries out for engagement by Christian ethicists and scholars of political theology. This moralism is visible most clearly in the death-lock that punitive justice has on the language of “morality” in American public life. What do I mean? Consider: In no other context or sphere of American public life does a more immediately ethical language appear so apparently naturally than it does in speech about crime and what we continue to call, in our no longer excusable ignorance, the “criminal justice system.” If the language of “justice” is heard in American public discourse, particularly on the lips of politicians, it is almost inevitably about punishment; justice seems, in these moments, to be rather securely tethered to the severity of punishment proposed, as if the wisest Solomon were in fact the fiercest Torquemada. It is hard to recall a politician who ever risked looking “soft” by appealing for a more humane, let alone a more merciful, criminal justice system.

This is a final injustice done to our culture by our criminal justice system. The fact of the system, and the repeated ideological shoring-up it has required, has done real damage to our ability to see the full scope of the issue we must address. Instead, we think of “justice” as what is done within the system, rather than a judgment we can make about the system itself. We protect ourselves from knowledge of what we do to our neighbors in the way of criminal justice by a willed ignorance of some of the most fundamental dimensions of our so-called self-government, and so simultaneously blind ourselves to those dimensions and to our responsibility, and capacity, to change those conditions. Our protective cynicism about the nature and scope of public justice leads to a corrosive skepticism about the political possibility of a truly decent justice system, or justice at all, in this world.

[1] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness(New York: The New Press, 2010)

[2]See Marie Gottschalk,Caught: The Prison State and the Lockdown of American Politics (Princeton: Princeton University Press, 2014) and Derek Jeffreys, Spirituality in Dark Places: The Ethics of Solitary Confinement(New York: Palgrave Macmillan, 2013)

[3] William J. Stuntz, The Collapse of American Criminal Justice (Cambridge, MA: Harvard University Press, 2011).

[4] For analogous discussions of the crisis of justice in the social order, see Oliver O’Donovan, The Ways of Judgment (Grand Rapids, MI: Eerdmans, 2005) and also Richard A. Posner, Reflections on Judging (Cambridge, MA: Harvard University Press, 2013).

[5] John Hagan, Who are the Criminals?The Politics of Crime Policy from the Age of Roosevelt to the Age of Reagan (Princeton: Princeton University Press, 2010).

[6] Karen Halttunen, Murder Most Foul: The Killer and the American Gothic Imagination (Cambridge, MA: Harvard University Press, 1998).